Article 13 of EC directive 2004/38 – former family members

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  • #39910
    michaelh
    Participant

    Good efternoon all, below is an extract from Article 13 of EC directive 2004/38. The way I have read this is as follows:-

    a former family member of an EEA national who is also an EEA national will retain the rights of residence of the EEA national that has left the family home if they satisfy the conditions laid down in point 1. of Article 13

    or;

    a former family member of an EEA national who is not an EEA national will retain the rights of residence of the EEA national that has left the family home only if they satisfy the conditions laid down in point 2. and any one of the sub points stated in (a), (b), (c) or (d)

    For instance, a French national that is married to a Spanish national and both living in the UK. The Spanish national is a worker but leaves the family home and they seek a divorce. Under Article 13 the remaining French national would retain their rights of residence until the divorce has been settled.

    However, if you have a Chinese national married to a Spanish national, who is the worker and the Spanish national leaves home, the Chinese national can only retain rights of residence if they satisfy one of the points laid down in a, b, c or d. i.e. just getting a divorce is not enough..

    Article 13
    Retention of the right of residence by family members in the event
    of divorce, annulment of marriage or termination of registered partnership

    1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2shall not affect the right of residence of his/her family members who are nationals of a MemberState.

    Before acquiring the right of permanent residence, the persons concerned must meet the conditionslaid down in points (a), (b), (c) or (d) of Article 7(1).

    2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

    (a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
    (b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or
    (c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
    (d)by agreement between the spouses or partners referred to in point 2b of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

    #113912
    Kay_Tade
    Participant

    Hi Mike, not quite sure there is a question here maybe just affirmation?

    Here’s how I understand it.

    [quote=michaelh]For instance, a French national that is married to a Spanish national and both living in the UK. The Spanish national is a worker but leaves the family home and they seek a divorce. Under Article 13 the remaining French national would retain their rights of residence until the divorce has been settled…[/quote] The French national, after a divorce, needs to satisfy the conditions of the direcive, like any other EEA, unless of course, a permanent right to reside has already been established prior to divorce. In other words, in my view, mere divorce does NOT just end R2R for an EEA national.

    [quote=michaelh]However, if you have a Chinese national married to a Spanish national, who is the worker and the Spanish national leaves home, the Chinese national can only retain rights of residence if they satisfy one of the points laid down in a, b, c or d. i.e. just getting a divorce is not enough..[/quote] Correctamundo! A divorce WILL end R2R, unless of course, at least one of the conditions of Art 13, para 2, a-d is met. That is different to the requirements of an EEA.

    #113914
    michaelh
    Participant

    Sorry Kay, after I had posted I realised I didn’t really pose much of a question. However, you have reafirmed what I was thinking.

    Thanks again – enjoy your weekend.

    I am having a day on the :beer: tomorrow celebrating the birth of my second child 😉

    #113921
    Kay_Tade
    Participant

    [quote=michaelh]I am having a day on the :beer: tomorrow celebrating the birth of my second child ;)[/quote] Congrats and enjoy. :santa: :beer:

    #113925
    michaelh
    Participant

    I will – thanks

    :party:

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